CA Unpub Decisions

Defendants and appellants Eric Ceballos and Cesar Ortega were tried together before separate juries. Ceballosâ€™s jury found Ceballos guilty of first degree murder (Pen. Code, Â§ 187, subd. (a)[1]), assault with a semiautomatic firearm (Â§ 245, subd. (b)), and shooting at an occupied motor vehicle (Â§ 246). The jury found true the allegation that Ceballos committed each of the offenses for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Â§ 186.22, subd. (b) (gang enhancement allegation)); and the allegations that in the commission of the murder and shooting at an occupied motor vehicle offenses, a principal personally used a firearm (Â§ 12022.53, subds. (b) & (e)(1)), personally discharged a firearm (Â§ 12022.53, subds. (c) & (e)(1)), and personally discharged a firearm proximately causing great bodily injury or death (Â§12022.53, subds. (d) & (e)(1)). Ortegaâ€™s jury found Ortega guilty of first degree murder (Â§ 187, subd. (a)), attempted murder (Â§Â§ 664/187, subd. (a)), and shooting at an occupied motor vehicle (Â§ 246). As to all offenses, Ortegaâ€™s jury found true a gang enhancement allegation (Â§ 186.22, subd. (b)), and the allegations that a principal personally used a firearm (Â§ 12022.53, subds. (b) & (e)(1)), personally discharged a firearm (Â§ 12022.53, subds. (c) & (e)(1)), and personally discharged a firearm proximately causing great bodily injury or death (Â§12022.53, subds. (d) & (e)(1)). The trial court sentenced Ceballos and Ortega to state prison terms of 97 years to life and 84 years to life respectively.

Defendant Cary L. Calvin appeals his conviction of one count of possession for sale of a controlled substance (Vicodin) (Health & Saf. Code, Â§ 11351), one count of possession for sale of cocaine base (Health & Saf. Code, Â§ 11350, subd. (a)), one count of possession of marijuana for sale (Health & Saf. Code, Â§ 11359), and one count of destruction of evidence (Pen. Code, Â§ 135).[1] He contends (1) the evidence is insufficient to support his conviction of possession of Vicodin for sale, (2) the trial court abused its discretion in admitting evidence of text messages from his cell phone, and (3) the trial court erred in imposing a three-year enhancement. We affirm the judgment, and remand for resentencing.

At a six-month review hearing, the juvenile court found that S.N.â€™s children were at substantial risk of detriment if returned to her custody. (Welf. & Inst. Code, Â§ 366.21, subd. (e).)[1] S.N. appeals, arguing that the juvenile courtâ€™s finding is not supported by substantial evidence.[2] We affirm.

This case involves sexual conduct that began as a consensual encounter, but then became non-consensual when Earl Kevin Moore wanted the victim to engage in sexual conduct with another woman. The victim did not want to do this, and appellant forced her to do so, despite her resistance. The defense consisted of appellantâ€™s testimony that the entire encounter was consensual. Moore was charged with two counts of forcible oral copulation in concert (Pen. Code, Â§ 288a, subd. (d)(1)), [1] penetration with a foreign object (Â§ 289, subd. (a)(1)(A)), and attempted rape by a foreign object in concert (Â§ 264.1, subd. (a)). A jury found Moore guilty on all four counts and Moore was sentenced to a prison term of 60 years to life. On appeal, Moore alleges the following errors: (1) the court improperly allowed testimony concerning prior instances of non-consensual sexual activity; (2) the court improperly responded to a question by the jury during deliberation, removing an element of the count of attempted rape by a foreign object in concert from the juryâ€™s consideration; (3) the court erred by failing to hold a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden) when Moore requested a continuance, at sentencing, so that retained counsel could replace his appointed counsel; and (4) the sentence included two five-year enhancements for prior convictions, pursuant to section 667, subdivision (a)(1), even though only one enhancement was authorized, because the prior convictions were not brought and tried separately. The People concede the sentencing error that Moore alleges and we strike one of the two five-year enhancements. We conclude that in responding to the juryâ€™s query concerning the count of attempted rape with a foreign object in concert, the court erred and removed an element of that count from the juryâ€™s consideration. Because we are unable to conclude that, absent the error, the jury would have convicted Moore on this count beyond a reasonable doubt, we must reverse Mooreâ€™s conviction on the count of attempted rape with a foreign object in concert. Because the sentence for that count was concurrent with the sentence on another count, our decision does not affect Mooreâ€™s aggregate sentence. We find no merit in Mooreâ€™s other assertions of error. Moore has also filed a petition for writ of habeas corpus, alleging ineffective assistance of counsel. Because Moore fails to make a prima facie showing of prejudice, we have denied his petition in a separate order.

Appellant Jose Perez challenges his convictions for kidnapping to commit rape, attempted kidnapping to commit rape, and other offenses. He contends the trial court erred in declining to suppress his statements to police, arguing that he asserted his right to remain silent and his right to counsel under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We reject the contentions and affirm.

This appeal is untimely and must therefore be dismissed. The court granted respondentâ€™s summary judgment motion and entered judgment in its favor on August 28, 2012. Respondent served a notice of entry of judgment on September 10, 2012. Appellants did not file their notice of appeal until December 21, 2012, more than 60 days after service of the notice of entry of judgment. Timely filing of a notice of appeal is jurisdictional, and we may not entertain an appeal when the notice is filed too late.

Appellant Curtis James Hill stands convicted of special circumstances murder for causing the death of Cecil Warren in the course of a robbery. Although Warren did not die until nearly four years after the robbery, the jury determined he did so as a result of the injuries appellant inflicted on him during that crime. Appellant contends his trial was unfair because the prosecution introduced statements that were taken in violation of his Miranda rights,[1] his attorney negligently allowed the jury to hear about other crimes he may have committed, and the stateâ€™s expert medical witnesses referenced the findings of a nontestifying physician in rendering their opinions as to the cause of Warrenâ€™s death. Appellant also contends cumulative error compels reversal and Californiaâ€™s special circumstances law is unconstitutional. Finding appellantâ€™s contentions unmeritorious, we affirm the judgment.

Following a jury trial defendant BJ Sanders III was convicted of possession of marijuana (Health & Saf. Code, Â§ 11359, count 1) and possession of a firearm by a felon (Pen. Code,[2] former Â§ 12021, subd. (a)(1), count 2). In a bifurcated proceeding the trial court found true the allegations that defendant suffered three prison priors. Defendant was sentenced to 199 days in county jail on count 1, for which he received credit for time served. On count 2 he was sentenced to three years in state prison, plus three consecutive years for the prior prison terms, for a total sentence of six years. Defendant appeals, contending the trial court erred in denying his motion to suppress and the trial judge erred in failing to disqualify himself upon learning that he was the prosecutor on one of defendantâ€™s prior cases.

Gresham Savage Nolan & Tilden, Nicholas Firetag and Marlene Allen-Hammerarlund for Movant and Respondent. The City of Riverside (City) filed a nuisance abatement action as to property owned by William and Kelly Horspool, and sought the appointment of a receiver pursuant to Health and Safety Code section 17980 et seq. Defendant William Horspool (William)[2] appealed from the order appointing the receiver in case No. E051500,[3] but failed to obtain an undertaking on appeal. Kevin Randolph, in his capacity of receiver, obtained an order permitting the sale of the property to a party who rehabilitated the property after defendants frustrated his efforts to do so. A notice of appeal on behalf of both Horspools was filed in case No. E053605, from the order permitting the sale of the property and an order awarding the receiver extraordinary costs and fees. J.P. Morgan Chase Bank, the holder of the mortgage on the property, did not appeal.

Steven Apostolas was charged in an amended complaint with numerous counts and appended enhancements, and with 10 prior serious felony convictions and 10 prior strike convictions. He faced life sentences if convicted. Instead, he entered into a plea agreement to plead guilty to numerous counts and appended enhancements, and to admit to a prior serious felony conviction and prior strike conviction in return for a stipulated determinate prison term of 30 years. On appeal, he asserts the trial court abused its discretion when it denied his motion to withdraw his guilty plea, because his plea was not knowing and voluntary and he was denied effective assistance of counsel.

Luke H., age 18, appeals from an order of the Sacramento County Juvenile Court denying his petition for an order compelling his mother, Deborah H., to make his nondependent sister, five-year-old Angel H., available for weekly visitation.[1] Luke contends (1) the juvenile court erred when it relied on In re A.R. (2012) 203 Cal.App.4th 1160 (A.R.) to deny his petition, (2) the court had authority to enter a visitation order against mother with respect to a nondependent sibling, (3) the denial of his petition seeking sibling visitation violated his constitutional right to due process, and (4) the court denied him a meaningful hearing. We conclude the juvenile court did not have jurisdiction to grant Lukeâ€™s modification petition for visitation with a nondependent sibling. We find the A.R. case to be controlling on this issue. Lukeâ€™s attempts to distinguish A.R. are not persuasive. The fact that the juvenile court had jurisdiction over mother does not mean the court had jurisdiction to compel visitation with a sibling who is not subject to the jurisdiction of the juvenile court. Further, in this case, Luke did not have a constitutional right to visitation with his nondependent sibling. Finally, Luke has forfeited his argument that there was no evidentiary hearing. In any event, this argument fails because the juvenile court had no jurisdiction to order visitation with a nondependent sibling regardless of any evidence that would have been presented. Accordingly, we affirm the juvenile courtâ€™s order.

Michael Bret Vanheuver killed his mother, Lisa Vanheuver, by strangulation. He then called the police. Officers arrived at the house, took him in to custody and he confessed almost immediately. Vanheuver also confessed to his aunt when she visited him in jail. He pled no contest to second degree murder (Pen. Code, Â§ 187), was sentenced to state prison for a term of 15 years to life and now appeals.

Christopher L.â€™s parental rights with respect to three of his children were terminated pursuant to section 366.26 of the Welfare and Institutions Code.[1] Christopher L. claims on appeal that the juvenile court erred in failing to apply the parent-child relationship exception to the statutory preference for adoption. He further argues that there was insufficient evidence of unfitness to permit termination of parental rights. We affirm.

Emil Shokohi, proceeding in propria persona, purports to appeal from an order denying his motion for reconsideration after the trial court granted a motion for judgment on the pleadings filed by Wells Fargo Bank, N.A., and Aubrey Kachmarik, respondents. "An order denying a motion for reconsideration . . . is not separately appealable." (Code Civ. Proc., Â§ 1008, subd. (g).) "An order granting . . . a motion for judgment on the pleadings is [also] not an appealable order because it is not final, but only a preliminary or interlocutory order. The proper appeal is from an actual judgment. [Citations.]" (Neufeld v. State Bd. of Equalization (2004) 124 Cal.App.4th 1471, 1476, fn. 4.)